The following summary is provided with the compliments of the Parliamentary Monitoring Group.

Summary:

Municipalities and organisations with an interest in the Spatial Planning and Land Use Management Bill (SPLUMB) put forward a wide range of concerns during public hearings on the provisions of the Bill.

The City of Johannesburg stated that there were many universal concerns which had been raised, mainly by the metropolitan municipalities. These related to levels of planning; the compilation of tribunals; reasonable time frames for decisions; the definition of national and provincial interest, monitoring, assistance and support; internal appeal authority; and delegations and transitional arrangements.

The City of Tshwane’s main issues were centred on the consultation process leading up to the Bill; transitional arrangements; and schedule one of the Bill. Several matters included the Bill were covered by other legislation. Concern was expressed in respect of section 26(4) of the Bill, which provided that regardless of any provisions in any other law, the Bill could be used to deal with planning applications. It was argued that the Supreme Court had established that two parallel processes could not exist, and it would therefore be advisable to provide that where provincial legislation was not in place, the Bill could then be used.

The Ethekwini Municipality raised issues in respect of the capacitating process. It was acknowledged that while section 9 and section 10 of the Bill provided for national and provincial support, the necessary support and capacity should be put in place prior to implementation of the Bill. Another major issue raised was in respect of the alignment of authorisations. It was stated that on a general level, there was a need for close alignment between chapter 4 of the Municipal Systems Act, which dealt with dealing with Integrated Development Plans, Service Delivery Frameworks (SDFs) and the Bill. Ideally, all such requirements should reside in one place.

The South African Local Government Association was of the view that despite the judgment of the Constitutional Court, the Bill still purported to give provinces powers which were supposed to be municipal powers. SALGA was also of the view that the current description of what should be in an SDF was too prescriptive. Further issues were raised in respect of land use schemes and existing property rights. Another basis for concern in the Bill was the provision that when the planning tribunal took a decision on a development application, the derogation of property might not be taken as a consideration. A contentious issue was the issue of appeal tribunals. In respect of the municipal planning tribunal, the Bill made provision for the exclusion of councillors from the decision-making process, but in respect of the appeal tribuna,l the Bill allowed politicians to form part of the composition of the tribunal.

Members asked questions and sought clarity in relation to the amount of time that would be deemed as feasible for the review of the land use scheme; the issue of appeals; interference by the provinces with the day-to-day operations of municipalities; and why the Department of Rural Development and Land Reform (DRDLR) had not considered the issues of mutual consent raised by the municipalities.

The Griqua Royal House complained about the situation in the past, whereby the indigenous people had never been called upon to make their submissions about laws which affected their lands, and reference was made to the injustices suffered during the apartheid regime. Parliament was urged to enforce the implementation of a number of laws, which included the Constitution; the Manila Declaration of 1989; the Johannesburg Summit on Sustainability in 2002; the United Nations Agenda 21(1992); the Earth Charter Initiative; the United Nations Millennium Goals (2000); and the New Biodiversity Act.

The Chamber of Mines stressed the importance of the mining industry for the South African economy and the special attributes of minerals and mining. It was argued that under the Bill there was a two-fold encroachment on mining. The first encroachment was that the mineral rights holder needed to procure zoning of land for mining uses, and previously municipal jurisdiction had been limited to urban and peri-urban areas. However, under the Bill, mineral jurisdiction included even rural areas, where most mining occurred. The second encroachment was that land developments by others for non-mining uses prevented mining uses, and previously the mineral right holder’s consent was required, which would protect existing, known future and even unknown future mining operations. Under the Bil, however,l there was no provision for the consent of existing mineral rights holders. The Chamber offered solutions to these perceived encroachment by the Bill.

The Co-operative Governance and Traditional Affairs, Province of Free State said that since 1894, Cogta Free State had had central land use considerations approval. The townships board had been established in 1894 and work was still been done by the board in considering all land use applications. Cogta Free State was still using the old legislation, such as the Ordinance of 1969 and the Removal of Restrictions Act of 1967 and there was therefore a need to maintain these pieces of legislation and not repeal them, otherwise Cogta Free State would not be able to do anything until there was a new legislation. The fact was stressed that in the Free State there were no town planning schemes. Free State had also never had proper planning legislation and this was why the Bill was a welcome development.

The Western Cape Department of Environmental Affairs and Development Planning (WCDEADP) was concerned about intergovernmental consultation around the National Spatial Development Framework and wanted a more explicit role for provincial and local government, which would involve more transparency in consultation. Further issues were raised in respect of the overlapping regulations that could cause confusion in respect of land use schemes. Appeals to tribunals were also dealt with. The WCDEADP suggested that the Bill should provide a framework for a national-provincial interface and principles for provincial and municipal planning. Details should left to provincial legislation and by-laws. The Bill should provide detailed rules to fill gaps in regulations for provincial and municipal planning.

The Community Law Centre/Urban LandMark (ULM) stated that the ULM had worked closely with the Presidency on supporting earlier drafts of the Bill, especially since the 2008 hearings. A round table talk was being organised to get a group of people who had been working through these issues to discuss openly and informally on how to go about resolving the difficult legal questions. These questions concerned how the law could secure national and provincial interests while simultaneously respecting local government’s role, as confirmed in the City of Joburg DFA judgment; what remedies were available to a party which was dissatisfied with a municipality’s decision; what would the impact of new legislation be on professional and administrative capacity, as local governments assumed greater responsibilities; and how the law could ensure that development management was harmonised across sectors and spheres, especially in the light of the Maccsands and Swartland decisions.

About the Author Tshepo Makhudu

I have a passionate interest in all matters to do with hospitality and coomercial property.

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